MEDICAL NEG

Facts: In 2015 the defendant, Dr Duze, performed a total hip replacement (THR) on the plaintiff, Ms Van Wyk, who was at the time 73 years old. It is common cause that the surgery was performed with informed consent and that the post-operative care and management were acceptable. It is further common cause that the plaintiff suffered a permanent sciatic nerve injury during or as a result of the surgery, which resulted in inter alia a permanent “drop foot”. Drs Naude and Birrell were initially tasked with examining and assessing the plaintiff in 2016. They were of the opinion that due care had not been taken by the defendant during the hip replacement procedure. They were, however, also of the view that since two years had not transpired since the surgery and some improvements were theoretically possible, a follow-up assessment should be done during 2017. Birrel carried out a follow-up examination of the plaintiff in 2017 and after collaboration with Dr Naude agreed, in a report, that no improvement of note was shown by the plaintiff. She still had to wear the drop foot splint and had a limp on the left side.

Claim: The only issue to be determined is whether the intra-operative damage done to the sciatic nerve was as a result of the negligence of the defendant. The plaintiff is not proceeding against the second defendant, Mediclinic Ltd. The nature of the negligence alleged by the plaintiff, as it transpired during the course of the trial, though not specifically pleaded in the particulars of claim, is the incorrect and careless placement of a retractor during the THR procedure.

Discussion: Dr Naude explained that a retractor is the fifth hand during surgery. The surgeon’s and his assistant’s hands are not enough to keep the wound open to gain access to the joint. Because the sciatic nerve is so close to the hip joint, incorrect placement of the retractor can cause damage to the nerve. Dr Naude agreed that the cause of 50% of sciatic nerve injury associated with hip replacements is unknown. Dr Naude also agreed with the literature that no single risk factor has been consistently reported as being significant and that many patients with no known risk factors incur neurological injuries. Dr Jordaan was the defendant’s expert. Whereas Dr Naude favours direct retractor damage as the most likely cause of the injury to the nerve, Dr Jordaan disagrees with this opinion on the basis that it is not indicated. He is of the opinion that indirect compression of the sciatic nerve most likely caused the complication.

Findings: It was an uncomplicated THR and the operation was technically successful. The lateral approach employed by the defendant poses a lower risk of sciatic nerve injury. Permanent sciatic nerve damage in an uncomplicated THR is rare (about 1% - 2%) but is a well-known complication. In 50% of sciatic nerve damage following upon a THR, the etiology or cause thereof is unknown. Against the logical and well-reasoned testimony of Dr Jordaan, that the cause of the plaintiff’s sciatic nerve injury falls within the 50% of cases which are unknown, Dr Naude’s bald opinion that the injury was most likely caused by a retractor because it is always used and is a dangerous instrument known to cause damage, cannot prevail. The plaintiff has failed to show on a balance of probabilities that incorrect and careless placement of a retractor had caused the injury to the plaintiff’s sciatic nerve.

Order: The plaintiffs claim is dismissed with costs.

WILLIAMS J

Facts and issue: The subject matter of this appeal is a medical negligence claim arising from the conduct of medical staff employed by the appellant, the MEC, before and/or during the birth by the respondent, Ms S, of her child, SS, at the St Barnabus Hospital. Ms S instituted the claim on behalf of SS, who is a minor. The trial court absolved the MEC of liability. Ms S’s appeal to the full succeeded, and the MEC was ordered to pay such damages as are proven consequent on the hypoxic ischaemic encephalopathy and brain injury sustained by SS as a result of the medical negligence of the medical staff. The MEC was granted leave on petition to appeal the full court’s order and judgment.

Discussion: The experts’ opinion that the cerebral palsy was caused by undetected foetal distress due to sub-standard foetal heart rate monitoring was nothing more than an opinion. The court was not bound by it. What it was required to do was to consider that opinion as part of the full body of evidence before it. Instead, the full court misdirected itself by placing undue reliance on the joint opinions of the obstetricians and paediatricians in concluding that causation was established. The most obvious misdirection by the full court its failure to factor into its analysis of the facts, the catastrophic ‘crashing’ of Ms S at the commencement of the caesarean. By all accounts, this placed Ms S’s life in danger and must have severely compromised the blood, and hence oxygen flow, to SS. Aligned with this uncontested evidence, was that of the radiologists, which identified the cerebral palsy as having resulted from an acute profound hypoxic ischaemic injury, rather than a partial, prolonged injury. It was not in dispute that the former type of injury is associated with a sentinel event. Consequently, the reasonable possibility is that the sentinel event that ultimately caused the brain injury was Ms S’s adverse reaction to the spinal anaesthetic.

Findings: There was no evidence to support the conclusion that proper monitoring prior to the operation would have averted the brain injury. The opinion of the experts, which was endorsed by the full court, assumed that had there been proper monitoring to identify ongoing foetal distress the caesarean would have been performed at 21h34 or soon thereafter. However, this assumption ignores the evidence that was before the court. When Ms S was first examined at 21h34 the only doctor at the hospital was unavailable because she was in theatre with another patient. For obvious reasons, it was never suggested that the nurses who examined her could have made the decision that a caesarean section was necessary and, without the say-so of Dr Madikane, put that process in motion. There was a demonstrable misdirection on the part of the full court in assessing the prospects of success of Ms S’s appeal. It failed to consider the total body of evidence in reaching the conclusion that causation had been established. Accordingly, its decision to refuse to strike the appeal from the roll because of the prospects of success cannot be justified. The full court ought to have refused condonation and re-instatement of the appeal and struck it from the roll.

Order: The appeal is upheld with costs. The order of the full court is set aside and replaced. The appeal is struck from the roll with costs.

Facts and issue: The plaintiff claims damages in her personal capacity and on behalf of her minor son arising out of the treatment administered to the plaintiff during her pregnancy and the birth of Simamkele (baby) at the Mitchells Plain Midwife Obstetric Unit (MOU) in 2010. The court is to decide on the issue of liability only. The plaintiff averred that the injury was caused by the substandard care and for the negligence of medical staff at the MOU, who failed to implement the appropriate procedures when it was evident that she presented with shoulder dystocia.

Discussion: The plaintiff alleges that the administration of the appropriate procedures would have prevented the shoulder dystocia and the resultant brachial plexus injury and Erb’s palsy to the baby. It is common cause the delivery was complicated by shoulder dystocia. There was a time interval of eight minutes between the delivery of the baby and the baby’s head, and, as a result of the delivery he suffered an injury to his brachial plexus in the form of Erb’s palsy and was also diagnosed with hypoxic ischemic encephalopathy. There was little dispute between both Drs Davis and Wright. Both described what the Mc Robert’s manoeuvre is and when it is employed in a delivery. Dr Davis opined that the bruising and swelling of the baby’s right arm, as well as the fact that the delivery was a standard vertex delivery, indicate that an alternative delivery method was employed to deliver the posterior arm and the McRobert’s manoeuvre was not performed. Dr Wright opined that the Mc Robert’s manoeuvre was probably attempted but failed and therefore some other manoeuvre, such as delivery of the posterior arm was also performed. This would account for the trauma to the baby.

Findings: It is manifest that the evidence presented by the plaintiff established on a balance of probabilities that the hospital staff were negligent in failing to assess whether the plaintiff, a multigravida, had risk factors for shoulder dystocia. Had that been done timeously, a caesarean section could have been performed, which would have prevented the injuries from occurring. Once the plaintiff had presented with shoulder dystocia, the hospital staff ought to have applied the procedures prescribed in the protocol. Failure to apply those procedures, and particularly the application of fundal pressure as opposed to suprapubic pressure, has served to worsen the situation and had probably caused the injury.

Order: The defendant is liable for such damages as the plaintiff may prove to have arisen as a result of the injuries sustained by Simamkele during his birth at the Mitchells Plain Maternity and Obstetric Unit.

Facts and issue: The plaintiff, Ms EN claims damages on behalf of her daughter, SN, from the defendant (the Member of the Executive Council for Health of the Gauteng Provincial Government) for injuries resulting in severe permanent impairment that her daughter sustained on her version during birth, because of the negligence of health care professionals employed by the defendant. Only the question of the defendant’s liability is before court. The plaintiff gave birth to her daughter SN at the Chris Hani Baragwanath Hospital (CHBH), under the care of health care professionals (nurses and a medical doctor) employed by the defendant. SN suffers from cerebral palsy and is severely impaired as a result.

Discussion: The plaintiff alleges that her daughter’s cerebral palsy resulted from an injury to her brain caused by prolonged and severe foetal distress that occurred during the time from when she was admitted to CHBH until she gave birth the next morning; and that this injury was caused by the negligence of the nursing staff attending her in failing to monitor her and her daughter adequately and as required during birth, so that they did not notice the foetal distress and could not intervene until it was too late to prevent the resultant injury. The plaintiff’s evidence is in all material respects corroborated by the evidence given by the experts called on her behalf. Prof Gericke gave evidence that there were no risk factors that would have predisposed SN to an antenatal cause of the cerebral palsy and that, on the available evidence he could not detect evidence of any sentinel hypoxic event that could have caused the injury that resulted in the cerebral palsy. On this basis he concluded that the injury most probably occurred during birth, rather than before or after it. He continued that the risk of SN developing cerebral palsy would have been reduced had there been an earlier delivery intervention and that it could reasonably have been detected earlier that SN was compromised during birth if the CTG monitoring was done more regularly during the hours preceding birth.

Findings: The plaintiff’s version that the nursing staff were negligent must stand. The nursing staff attending to her and her unborn baby at CHBH were negligent in failing to monitor the plaintiff and her unborn baby according to the frequency prescribed by the maternal guidelines. SN suffered the injury to her brain that in turn caused her cerebral palsy and impairment intrapartum, due to a partial prolonged hypoxic insult. The nursing staff’s negligence in not monitoring mother and baby as prescribed caused SN’s injury (and so her condition and impairment) in that, had they not been negligent and had they monitored the plaintiff and SN as prescribed, SN’s distress would have been detected earlier, and action would also have been taken earlier to prevent any injury.

Order: The defendant is liable for 100% of the plaintiff’s damages, as proven or agreed to.

Facts: In her representative capacity, Ms VN instituted an action on behalf of her daughter, PN, against the MEC for damages in respect of the injuries suffered by PN at the time of her birth. The allegations were that the injuries were sustained due to the negligence of the staff employed by the MEC. PN was born at the Dora Nginza hospital and she suffered from cerebral palsy. Unfortunately, PN passed away in 2023 at the age of 13 years. The applicant relied primarily on expert evidence in support of the propositions made before the High Court. The expert opinions were based on the cardiotocograph (CTG) trace, the notes of the hospital staff, and the views expressed in the reports compiled by the doctors and specialists from both parties.

Appeal: The claim was dismissed by the High Court. Ms VN applied for leave to appeal, which was denied by the High Court. The appellant petitioned the present court for leave to appeal which was dismissed. Aggrieved by the dismissal of her petition, she applied to the President of the present court to reconsider the application for leave. The Acting President granted the application for reconsideration of the present court’s decision to refuse leave.

Discussion: The criticism that the High Court misdirected itself in finding that the foetus was not in a weakened state and suffered a tapping of her reserves just before the second stage of labour started cannot be sustained. The same applies to the finding that there was evidence of an obstructed labour based on the degree of the caput. The High Court dealt with the issue of the interpretation of the CTG monitoring and the obstructed labour issue pertinently in its judgment. These propositions are inconsistent with the evidence of the applicant’s expert witness, Dr Hofmeyer, who eventually conceded that Ms VN probably endured a normal first stage of labour up to the time of full dilation. It was common cause amongst all the experts that the foetus suffered a severe acute, profound central brain injury intrapartum during the second stage of labour, which only lasted 20 minutes, of which only the last 10 minutes involved active pushing by Ms VN. Not a single expert witness, including those called by the applicant, suggested that there might have been an injury indicative of a partially prolonged hypoxic-ischaemic brain injury. All the experts agreed that these kinds of injuries occur suddenly or over a short period, progress rapidly, and are unanticipated. The applicant is conspicuously silent about the fact that Ms VN’s amniotic fluid was recorded as normal and that there was no meconium present. The significance of this, as all the experts agreed, is that the presence of meconium may be indicative of foetal distress.

Findings: The submission by the applicant that the foetus may have been in a compromised condition from the outset, amounts to nothing more than speculation. All of the submissions made by the applicant fly in the face of the undisputed evidence of the experts that the minor child suffered an extremely severe and profound brain injury intrapartum and was born flat, cold and apnoeic. The extent, if any, to which the alleged sub-standard resuscitation aggravated an already existing brain injury, as correctly found by the High Court, could not be proven with any degree of certainty by all the experts, leaving it in the realm of speculation. The applicant misses the point that all the experts agreed that it is impossible to prove any material contribution to the already extremely severe brain injury sustained in utero. The applicant failed to demonstrate that exceptional reasons exist for leave to appeal to be granted. The upshot of these findings is that the applicant did not meet the stringent test required in this application and has merely re-argued all the factual submissions made before the High Court.

Order: The application for leave to appeal is dismissed.

KGOELE JA (NICHOLLS JA, SMITH JA, COPPIN AJA and MJALI AJA concurring)

Facts and issue: The plaintiff instituted a claim against the defendant for medical negligence which she suffered while under the care of the defendant’s employees. The plaintiff was shot on both lower limbs and sustained gunshot wounds. She was admitted and treated at Tambo Memorial Hospital. Unfortunately, while she was still in hospital her right leg above the knee was amputated. The issues are whether there was negligence on the part of the medical and nursing staff of the hospital in treating the plaintiff.

Discussion: According to Prof Veller with reference to the medical records, the plaintiff first suffered paraesthesia (loss of sensation) which was followed by paralysis (loss of movement). This led to what is called Ischemia. According to Prof Veller, when confronted with this condition the nurse should have reported it to a doctor who would have been able to interpret it. A registered nurse that the plaintiff had signs of ischemia which is a condition where the plaintiff had pain and decreased sensation. The nurses were supposed to report the condition immediately to a doctor. Only a doctor can make a diagnosis of ischemia. She testified further that, the pedal pulse as noted on the hospital records, is not reasonable and was substandard. The strength of the pulse was important to identify any changes in the condition of the patient. According to Prof. Becker it is incumbent that the nursing staff must phone the doctor when they notice a change in the condition of a patient. He testified further that had there been an intervention at the loss of sensation, the plaintiff’s leg would most probably been saved.

Findings: The question is therefore whether the plaintiff’s amputation of the leg would not have occurred had the defendant’s nursing staff timeously alerted the doctor about any changes in the plaintiff’s right leg which could have prevented the amputation. The defendant’s nursing staff provided the necessary care to the plaintiff under the circumstances by checking her condition within reasonable time frames. They discharged the duties according to the general level of knowledge then available to them. The doctor was called and alerted about the plaintiff’s condition. The defendant’s nursing staff by summoning the doctor they took reasonable steps to prevent further deterioration of the plaintiff’s right leg. The plaintiff had a rare neurovascular complication. This complication was not reasonably foreseeable. There was no negligence on the part of the defendant.

Order: The plaintiff’s claim is dismissed with cost.

Facts: The plaintiff is the biological mother of the minor child who was born at the Themba Hospital, a health facility that falls under the control, management and authority of the Department. The plaintiff’s pregnancy progressed uneventfully and without apparent complications. The plaintiff’s baby was delivered 2 hours and 45 minutes after the decision had been made for caesarean section, and over 5 hours since the caesarean section was indicated. There is no evidence that contractions were tocolysed while awaiting caesarean section or that intrauterine resuscitation was performed. It is accepted that the available evidence supports the premise that the brain injury was caused by hypoxia and that this hypoxia most likely occurred during labour because of the prolonged nature of the advanced stages of labour. The minor child has since been diagnosed with severe mixed-type cerebral palsy. The plaintiff testified that she had taken "isiwasho" the day before the birth of the child.  She said that in consequence of her having been to the hospital and having been sent home because she was not in labour, she felt that her luck was bad. The iziwasho was taken to change her luck and that the specific preparation she had taken was in fact called "luck".

Application: The action brought by the plaintiff against the defendant arises out of what is contended by the plaintiff to be the negligent conduct of the medical staff at the Themba Hospital. Two issues are to be decided. Firstly, whether the alleged taking of "isiwasho" or "imbita" by the plaintiff to speed up labour had any impact upon her child’s subsequent birth injury. Secondly, whether the Themba Hospital facilities and relevant budget, including for the period relating to the weekend of 18 and 19 December 2010, was causally related to the delay in the carrying out of the caesarean section for the delivery of the plaintiff’s child.

The mixture: The plaintiff’s evidence was that she had mixed the "luck" with some water and then taken two teaspoons of the mixture, put them into her mouth and then spat the mixture onto her stomach. The plaintiff was adamant that she had neither drank nor swallowed the mixture. The plaintiff denied taking "imbita". She testified that the former was to bring luck and was not ingested whereas the latter was a herbal mixture which was ingested. They were two different things. The plaintiff testified that she had informed the experts with whom she had consulted, that she had taken the isiwasho. The evidence of the plaintiff that she neither took imbita nor told the doctor that she had, was not disputed and is accepted. The whole question of whether she took isiwasho and/or imbita is a red herring. The first reason is that the claim of the plaintiff was brought against the defendant in a purely representative capacity. The plaintiff was never joined as a wrongdoer in her personal capacity and so it does not now afford the defendant succour to raise as a defence to the claim, that the plaintiff’s conduct was in any way the cause of her child’s misfortune. The second reason arises out of the undisputed entries in the hospital records. The recording of the use of isiwasho (and allegedly imbita) was accompanied by a caution recorded by the doctor that in consequence of this, the plaintiff was at high risk for a ruptured uterus and required close monitoring. Throughout the period of monitoring, neither the plaintiff nor the child demonstrated any distress which could be attributable to the isiwasho (or the imbita).

Findings: Despite the recognition that the plaintiff was in obstructed labour and required a caesarian section, inexplicably, and for a 4,5-hour period, monitoring of the foetus ceased. It is self-evident that if the monitoring of the plaintiff and foetus had continued, then distress in the foetus would have been detected earlier and the caesarean section performed earlier. In the absence of any adverse effect on the foetus being established in consequence of the use by the plaintiff of iziwasho (or imbita) or of the Themba Hospital being without the staff or facilities to properly care for the plaintiff and the foetus, that the sole cause of the injury to the foetus (the child once he was a newborn) is the negligent failure on the part of the staff of the Themba Hospital to timeously deliver him when by the exercise of reasonable care, they could and should have done so. There is no merit in the defendant’s argument that the taking of iziwasho (or imbita) played any role in the birth injury.  Additionally, no merit is found in the argument that due to a lack of resources the staff at the Themba Hospital were unable to provide a minimum standard of care which would have obviated the birth injury. The injury to the plaintiff’s child was entirely avoidable.

Order: The defendant is liable for the payment of 100% of the proven or agreed damages of the plaintiff’s minor child. The defendant shall pay the plaintiff’s taxed or agreed party-and-party costs.

MILLAR J

Facts and issue: The plaintiff instituted a claim for damages against the defendant, the MEC for Health, arising from an incident of an alleged medical negligence which occurred during her admission at Zeerust Hospital. The plaintiff alleges that the doctors and nursing staff failed in their duty to care to the plaintiff because of which the plaintiff suffered a miscarriage and further that a deceased foetus was left inside the plaintiff for a period of over 30 days.

Expert evidence: The expert’s opinion is based on the “say-so” of the plaintiff, no research had been done to assist the court on the medico-legal understanding of the concepts of twin pregnancy, miscarriage vis-à-vis stillbirth given the period of gestation. The expert report says nothing about the personal qualifications and experience experts, and particularly the specialized experience concerning the matter before the court. The unsubstantiated opinion of Dr Amoko is rejected as he also failed to give oral evidence of his opinion technically leaving the court with no opinion at all.

Evidence: Dr Amoko stated that the plaintiff ‘aborted a foetus and was done womb cleaning’. No evidence was led by the plaintiff that the medical staff caused her to suffer miscarriage as averred in the particulars of claim. This issue was also not dealt with during argument on behalf of the plaintiff. The only information concerning the medical treatment of the plaintiff at Zeerust hospital is what is termed “Patient Discharge Report” which states that the plaintiff was admitted at hospital and discharged and was diagnosed on discharge of incomplete miscarriage. The plaintiff’s cause of action is dependent on what transpired at Zeerust hospital, yet no attempts were made on both sides of the litigants to assist the court with the medical records from Zeerust hospital or witnesses who offered the plaintiff the medical treatment. The evidence before the court is insufficient to attract delictual liability in general. The lack of medical records and a well-reasoned expert opinion left the court with general assumptions as to the cause of negligence and this militate against the plaintiff’s case.

Order: The plaintiff’s case is dismissed.

Facts: In 2015 the plaintiff was aged 74 and living on her own when she suffered a stroke. She was first taken to a private hospital but since she did not have medical aid she was moved to a State hospital. That hospital did not have the facilities to treat a stroke patient, so she was taken by ambulance to George Mukhari Hospital (GMH). She was examined and there is no report of her having bedsores. She did not receive any treatment according to the hospital’s own protocols in relation to the possibility of bedsores whilst in the emergency section. When she was admitted to the ward, a note was made that she had an old bedsore. The plaintiff was later sent to a private hospital and then to a special rehabilitation hospital. Whilst at home she was seen by a wound specialist who advised the family that they see an attorney, given the state of the plaintiff’s bedsores, which they duly did.

Appeal: The plaintiff’s principle contention is that her bedsores were caused by sub-standard treatment whilst she was being treated at GMH. The High Court found against the MEC and declared that the employees of GMH were negligent in relation to the injury sustained by the plaintiff in the form of a bedsore. Such negligence was declared to have been a cause of the plaintiff’s injury.

Discussion: Both experts agreed that the plaintiff had co-morbidities that made it more likely that she would be susceptible to bed sores. These were her age, hypertension and because she had been lying in the same position for some time. The issue of causation in this case is difficult. It is possible that the plaintiff could have developed her bedsore if she had been lying on the floor of her home for some time before she was discovered by her helper. It is also possible, given that the plaintiff had suffered a stroke and had to be intubated urgently, that the staff were not focussed on examining her body for bedsores and this may have been missed. However, the court a quo held, correctly, that even if the bedsore had been brought into existence prior to the plaintiff's admission to GMH, this did not exonerate the defendant. The hospital had a protocol for bedsores and this was a standard the hospital itself had adopted and it can be expected that its nursing staff would have been trained in it.

Findings: The hospital had an ongoing duty of care to the plaintiff from the time of her admission to prevent the bedsore deteriorating or developing. Given the plaintiff’s condition at the time of admission, the fact she was a stroke patient who had been moved to GMH from two prior facilities, her age at the time of 72, the history given by the family of how she had been found, the length of time spent in the emergency ward without being moved, the close link between the harm and the unreasonable omission can be established on these facts. Although the plaintiff was seriously ill, there was no medical reason why the plaintiff could not have been treated in terms of the protocol for bedsores and been turned in intervals of two to four hours. Whatever resource constraints GMH faces as a public hospital, this was not an issue relevant to the treatment required by the protocols. The defendant’s hospital staff failed in their duty of care to the plaintiff to prevent the onset or spread of the bedsore she sustained.

Order: The appeal is dismissed. The plaintiff is awarded costs including costs of one counsel on Scale C.

MANOIM J (MAKUME J and SENYATSI J concurring)

Facts: The plaintiff was pregnant for the first time and attended at the Frere Hospital, East London, in 2021. She had been referred  by the clinic pursuant to an antenatal visit for elevated blood pressure. The child YM was born there and suffered hypoxic ischaemic encephalopathy (HIE). It is common cause that an injury to YM occurred intrapartum causing YM to be born asphyxiated, requiring resuscitation and giving rise to the HIE and sequelae suffered by YM.

Claim: The plaintiff claimed damages on behalf of YM relating to the brain injury and alleges negligent treatment by the staff at the hospital. The defendant (MEC for Health) avers that due to the plaintiff’s non-cooperation, which was tantamount to a refusal of medical treatment, the defendant’s employees were unable to adequately monitor the plaintiff. Accordingly, the defendant’s employees were not alerted to the events that may have led to the HIE and thus were not provided with an opportunity to make appropriate interventions to address any impending HIE.

Discussion: The evidence from the nursing sister and the doctor was that the plaintiff became uncooperative, climbing out of the bed and removing the cardiotocography (CTG). The doctor attempted to counsel her about the dangers of refusing observations and fetal monitoring. Another doctor stated that she met the plaintiff who was aggressive, violent and verbally abusive, outside the theatre when they wanted to take her into the theatre. The viva voce evidence supported by the maternity record unquestionably establishes that the plaintiff was uncooperative, aggressive and violent towards the defendant’s employees from approximately 03h00. The plaintiff’s uncooperative, aggressive and violent behaviour perpetuated right up to the doors of the theatre. The evidence establishes repeated attempts at monitoring by the defendant’s medical staff during the period in question, hampered by the uncooperative conduct of the plaintiff.

Findings: The overriding consideration is the effect that the plaintiff’s conduct had upon the health professionals charged with the medical care during her labour. The resounding conclusion is that they were severely compromised in performing their duties, particularly in terms of the Maternity Guidelines. In short, she refused the treatment being offered after being made aware of the risks attached thereto. The plaintiff’s refusal to be monitored and managed must be viewed as an “informed refusal”. She must have been fully aware of the purpose of the CTG and maternal examinations prior to her uncooperative behaviour and was repeatedly warned of the risks associated with refusing same. The plaintiff created her own crisis in which the nursing staff and the doctor were unwitting participants trying by their best endeavours to avert a most unsatisfactory situation. The indubitable conclusion is that the plaintiff has failed to discharge the onus of proving the negligence and consequent liability of the defendant.

Order: The plaintiff’s claim is dismissed. Each party is to pay their own costs.

COLLETT AJ

Facts and issue: This case involves a claim for damages due to alleged medical negligence by the staff of the Member of the Executive Council for Health, Eastern Cape. The plaintiff, acting on behalf of herself and her minor child, Linamandla, claimed that the negligence of the medical staff during her labour and the birth of Linamandla at Nelson Mandela Academic Hospital (NMAH), led to Linamandla's cerebral palsy. The primary issues are whether the cerebral palsy was caused by a pre-partum or intrapartum event, and whether the negligence was causally connected to the cerebral palsy.

Discussion: It was conceded that the actions of the defendant’s employees were substandard, amounting to negligence. There existed substandard care amounting to negligence in that there was poor monitoring of the foetal heart rate (FHR) and that, as Canzibe Hospital was a district hospital, it should have been able to perform a caesarean section, but it did not. It seems that Dr. Swan further conceded that in the circumstances prevailing, that is where Canzibe could not perform such a caesarean section, more should have been done by the medical staff, including regular monitoring, to prevent foetal stress over the many ensuing hours until when Linamandla was born. On the evidence of the plaintiff, and in particular the expert evidence of Drs Murray and Kara, the plaintiff made out a strong prima facie case that the injury to Linamandla’s brain occurred intrapartum because of the extended labour due to the delay in getting the plaintiff on to the theatre table at NMAH.

Findings: The plaintiff presented evidence from four witnesses, including medical experts, who supported the claim that the injury to Linamandla's brain occurred intrapartum due to prolonged labour and delayed caesarean section, leading to hypoxic ischemic encephalopathy (HIE). The defence presented four witnesses but relied heavily on Dr. Keshave, whose theories about possible pre-existing conditions causing the HIE were not sufficiently substantiated. The negligent monitoring and delayed intervention by the defendant's medical staff were the probable causes of Linamandla's HIE and subsequent cerebral palsy.

Order: The defendant is ordered to pay the plaintiff’s agreed or proven damages both in her personal and in her representative capacities for and on behalf of her minor child, Linamandla.

Facts and issue: The plaintiff’s claim is that the defendant is in breach of the agreement between the plaintiff and the defendant acting through its employees failed to exercise the degree of care and skill required. The plaintiff contends that in the process of the medical practitioner alternatively nursing staff inserting the intravenous drip, a portion of the drip broke off and remained in his bodily tissue. This portion of the drip is referred to as a foreign body. The medical practitioner alternatively nursing staff are alleged to have been unable to retrieve the foreign body.

Discussion: The defendant pleads that when the incident occurred, the medical practitioner believed that a part of the intravenous drip remained in the body (arm) of the plaintiff. However, following necessary medical procedures and scans to investigate whether the foreign body was in the body of the plaintiff, nothing was found. The defendant further pleads that its medical staff took reasonable medical precautions and conducted an exploration through surgery, which revealed no foreign body. The evidence of the plaintiff did nothing to advance the cause of action posited in the particulars of claim. The attending doctor, Dr Breytenbach, immediately called for assistance from Dr de Hill, a surgeon, and a decision was taken to take the plaintiff to surgery. The notes of Dr de Hill reflects that no Jelco from the intravenous drip was found in the arm of the plaintiff. The medical staff went further and sought expert opinion from specialists at Chris Hani Baragwanath Hospital in Gauteng. The plaintiff was consequently referred for CT scans to trace the foreign body. The reports from Dr TC Sefanyetso, based on the CT Venogram of the right upper limb of the plaintiff and a CT Pulmonary Angiogram emphatically shows no presence of any foreign body in the plaintiff.

Findings: All steps taken by the medical staff upon suspecting that the Jelco part of the intravenous drip had broken off, speaks to medical care diligently provided to the plaintiff, rather than negligence of any degree. The case for the plaintiff is predicated on the strength of the Jelco part of a drip remaining in situ in his bodily tissue. The hospital records with the surgery performed by Dr de Hill found no presence of any part of an intravenous drip in the identified vein of the right arm of the plaintiff. The two CT Venograms and a Pulmonary Angiogram found no presence of any intravenous drip. The body of medical evidence militates against the cause of action relied on by the plaintiff.

Order: The plaintiff’s claim is dismissed with costs.